The Exceptions to COVID-19 Medical Malpractice Immunity in New Jersey
From 2009 to 2018, there were almost $2.5 billion of medical malpractice lawsuit payments made in New Jersey. However, it is more difficult to file a malpractice lawsuit for coronavirus-related treatment. Nonetheless, there are some circumstances under which you can file a COVID-19 malpractice lawsuit.
Legislation Protects New Jersey Doctors from COVID-19 Malpractice Claims
In order to protect physicians and the health care industry during COVID-19, Governor Phil Murphy signed into law a bill that gives them legal immunity from lawsuits for actions taken to treat patients suffering from COVID-19. In general, this means that they cannot be sued for medical malpractice by patients who believe that they did not receive the proper medical care. The legislation was meant to give health care professionals the freedom to make medical decisions without having to worry about malpractice lawsuits being filed against them. What this generally means is that health care professionals who make good faith efforts to treat patients for COVID-19 are immune from a lawsuit.
However, this does not completely prohibit lawsuits against physicians. There are still some exceptions contained in the legislation that allow doctors to be held accountable when their breach of duty goes beyond the pale. While they cannot be sued under a negligence theory, there are circumstances under which doctors can be sued.
The Gross Negligence Exception to the Law
One of the exceptions to this legislation is the fact that a medical professional can be sued for gross negligence. While the term does contain the word “negligence,” the inquiry in a case for gross negligence is actually quite a bit different from a standard negligence case. In a regular negligence case, plaintiffs are dealing with some type of carelessness in the acts or omissions of a doctor that caused the patient’s injury. Doctors do not need to have any knowledge that they have done something wrong. They only need to act unreasonably.
Gross negligence is quite a bit different. The concept can mean different things in different states, but at the very minimum, it requires conduct that is far worse than negligence. In New Jersey, gross negligence is usually considered to be between negligence and willful misconduct. According to the New Jersey Supreme Court, gross negligence is the failure to exercise “slight care.” In other words, it is like a “negligence plus.” You can see how some doctors may be subject to lawsuits if they act with near-complete disregard for the patient’s health. However, gross negligence is a pretty high standard to meet and is not always easy to prove.
The Recklessness Exception
You would also still have the ability to sue a New Jersey doctor for reckless conduct in treating a patient for COVID-19. This is also a very high standard to meet, but it is also possible. Reckless here would mean that a doctor is so careless that it is an extreme departure from a reasonable standard of care.
It is difficult to cite examples of the type of gross negligence and recklessness that could lead to a successful COVID-19 lawsuit. The New Jersey Legislature obviously intended to raise the bar on what it takes for a plaintiff to prevail in a malpractice lawsuit because they wanted to encourage doctors to provide care for coronavirus patients. However, the legislature also did not intend to give doctors a blank check to completely disregard any type of medical standard in treating patients.
If you or a loved one believes that you still have a medical malpractice claim, you should reach out to a personal injury lawyer to discuss your case. The attorney could review the medical records and take the facts of your situation and let you know of the merits of your possible case.
Contact a New Brunswick, NJ, personal injury lawyer with Rebenack Aronow & Mascolo at (732) 247-3600 to learn more about your legal rights during the COVID-19 pandemic and your ability to file a lawsuit pertaining to your medical treatment.